Professor Gavin Phillipson
Introduction
1. I am writing this memorandum as a Professor
of Constitutional Law who has published widely on this topic,
and taught it for over 15 years at both undergraduate and post-graduate
level. I also have expertise in the area of anti-terrorism legislation,
in relation to which the relative performance of Lords and Commons
when engaging in legislative scrutiny is illuminating. I wish
to address the issue of the respective balance of appointed and
elected members left open by the Bill and White Paper and in particular
to argue in favour of the hybrid elected /appointed House.[126]
I am concerned in particular to address what I believe is the
simplistic view, which now appears to be gaining ground, that
if 80% elected is 'good' than 100% is 'better'. My key purpose
is to defend the idea of a hybrid House, with at least a 20% appointed
independent element, from those who argue in favour of fully elected
chamber by showing that it is not a poor compromise but rather
a better intellectual solution.
The problem
2. I have summarised the way in which all the
main options for reform call forth equally virulent criticism,
as follows:
'an appointed House is derided as a giant quango,
representing rule by an elite, lacking an democratic legitimacy
and ultimately ineffectual. A wholly elected chamber, on the other
hand, is objected to on the basis that it would produce a clone
of the commons, that could become its rival, thus producing the
danger of legislative impasse and destroying the clear line of
democratic accountability between parliamentary government and
the people that is said currently to exist... Finally the seemingly
obvious compromise, a mixed elected/appointed House, is scorned
as a "hybrid nonsense" that simply represents a failure
to decide the issue one way or the other and would be crippled
by internal divisions between its elected and appointed members
and the different degrees of legitimacy each would claim.'[127]
3. Disagreement over the proper composition of
a reformed House springs from the fact that politicians and commentators
tend to emphasise only one key quality that a new chamber should
have: thus those in favour of an elected House urge that democratic
legitimacy must be overriding; those favouring an appointed House
stress the importance of the House being able to make a distinctive
contribution from the Commons in terms of providing independent
and non-partisan scrutiny of legislation. In this memorandum I
will suggest that when a balanced set of criteria, drawn from
analysis of second chambers overseas, are applied to the problem,
and the necessity of certain trade-offs accepted, then the hybrid
solution emerges as the best one in the UK constitutional context.
I believe that Parliament got this question broadly right in the
report of the Public Administration Select Committee[128]
some years ago (hereafter 'PAC'). While a 60/40 elected/appointed
House would probably be the optimum balance, an 80/20 elected/appointed
House would be hugely preferable to a fully elected House.
4. In this memorandum I do not discuss the possibility
of a wholly or mainly appointed House as such a reform is not
suggested by the White Paper and nor is it supported by any of
the three main political parties. I do however believe that leaving
the House wholly appointed would fail to cure the main problem
it has had for many years that much of its excellent policy work,
including its proposed revisions to legislation, goes to waste
because of its perceived lack of legitimacy. As Donald Shell has
put it, the UK has for some time been working under a system of
"de facto unicameralism",[129]
mainly because of the conventional limits upon the exercise of
the House's powers, which stem from its perceived lack of legitimacy.
5. However, I also believe that if no agreement
on radical reform to composition can be reached, the current House
would be considerably enhanced were Prime Ministerial patronage
to be appointed and an independent statutory Appointments Commission
to take over the appointment of new members to the House. If necessary,
this reform can and should be carried out even if no other change
can be agreed.
Evaluation: key criteria
6. There is general agreement that the reformed
House will continue to carry out the same functions as the present
House, and that is what the White Paper proposes. Meg Russell,
in her authoritative comparative analysis of second chambers overseas,
has identified three factors as crucial for judging the likely
effectiveness of a second chamber.[130]
As summarised by the PAC,[131]
the reformed Lords should have the following qualities: distinct
composition; perceived legitimacy; adequate powers. Parliament's
previous Joint Committee on Lords reform[132]
arrived at five key criteria, that I believe command wide acceptance:
legitimacy; representative-ness; no domination by one party, independence
and expertise. In substance, it is suggested, these coincide with
the first two of Russell's criteria: representative-ness goes
to legitimacy, while independence, freedom from party domination
and expertise are all qualities that render the Lords distinct
from the Commons. Moreover, the broadly agreed functions of the
second chamber—particularly its special role in relation
to technical scrutiny and protection of human rights and the constitution—reinforce
the claim that the reformed chamber should seek to maintain those
qualities of relative independence and expertise that are particularly
suited to these types of scrutiny, in contrast to the partisan
culture of the Commons.
7. Distinct composition for the House, as well
as enabling it to perform the particular scrutinising role that
all agree it should have, also ensures that the second chamber
makes a worthwhile addition to the legislative scrutiny carried
out by the first. Thus it is also vital to ensure that the party
balance in the chamber is different, and more proportional from
that in the Commons, to prevent one-party domination, and ensure
that the House has an alternative and more broadly-based perspective
on the development of public policy. Russell's research clearly
indicates that while Government control of the second chamber
can render it too weak and Opposition control too likely to result
in deadlock with the first chamber, the option of no overall control,
is "the most effective option;"[133]
"a powerful upper house which is controlled by forces independent
of government can help create a form of consensus politics which
results in better political outcomes in the longer term."[134]
The proposed STV electoral system would be likely to achieve this
in practice. The use of First Pass the Post would not be
suitable for the second chamber, as likely to produce either Government
or Opposition control.
8. The third criterion for an effective second
chamber is perceived legitimacy. As the PAC put it: "In
order to use its powers, the new chamber—unlike the existing
House of Lords—will need to be seen to have legitimacy,
and be able to carry public support."[135]
What counts here is percieved legitimacy: in other words,
a perception in the minds of the public and the government that
the power and position of the House are justifiable in a democracy;
without this, the House will lack the confidence and extra-parliamentary
support to oppose the government effectively. In a democracy,
the starting point is that political power must derive from the
people, via election, though this is a matter that will be explored
further below, in the context of the detailed arguments about
the merits of the balance between appointed and elected members.
A general objection to all mixed Houses.
9. The Royal Commission, successive White Papers
and the PAC have all recommended a mixed House; however opposition
to it continues, as the quotation above indicates. Determining
the force of this objection, is, however, crucial: if any form
of mixed House is rejected on these grounds, then the only options
left will be the polarised positions of a wholly elected or wholly
appointed House, ruling out any form of compromise.
10. There appear to be two main strands to the
objection. The first main argument is the so-called "Strathclyde
paradox:"[136]
"If election is so good, why should the public not elect
all our political Members? If it is bad, why elect any
at all?"[137].
This piece of apparent logic has gained considerable support in
the Lords. It is however flawed because it rests upon the false
premise that electing members is straightforwardly either good
or bad. Thus those we believe that election is 'good' believe
that 100% elected is better than 80% elected. In fact, if the
three criteria for an effective second chamber noted above are
borne in mind, it becomes apparent that election to the second
chamber has some advantages and some drawbacks. Election is
"good" in terms of legitimacy: if there were to be no
elected members, this would prevent the House from having sufficient
democratic legitimacy to assert itself effectively against the
Executive-dominated Commons. However, the issue of the composition
of the Lords does not rest solely upon legitimacy. As canvassed
above, in addition to being legitimate, it should also be distinct
from the Commons, more independent from party control and have
the expertise to aid it in its sometimes highly technical work.
Once these factors are considered, we can see why we might not
want all the chambers members to be elected, desirable
though this would be in terms of legitimacy: such a course of
action would preclude the appointment of members who would add
expertise, independence and thus distinctive value to the House.
Having different classes of members—in other words a hybrid
House—ensures that these different requirements are all
met. These arguments show why, on a balanced view, the majority-elected
solution comes out as the best one. In contrast, the so-called
Strathclyde paradox only has any force if it is assumed that reform
of the Lords is to be judged by one criterion alone.
11. The second, and only plausible objection
is that originally voiced by Professor Bogdanor:
"A mixed chamber would contain members enjoying
different degrees of democratic legitimacy. The danger then is
that any vote carried by a group with a lesser degree of democratic
legitimacy will be seen as less valid than a vote carried by a
group with greater democratic legitimacy…Who elected you?
would be the cry directed at the hapless nominated members whenever
they carried a vote against their elected colleagues."
[138]
This point has been echoed in Parliament by some
of the more thoughtful objectors to a mixed House. However, the
extent to which this would be a problem for a hybrid House has
been much too readily assumed and three points may be made against
it.
12. First of all, the reaction of the elected
members to such an eventuality is a matter of speculation. As
Russell has pointed out, only two chambers out of 58 bi-cameral
legislatures world-wide have a substantial amount of appointed
members in the second chamber, so there is little evidence from
which to predict with any confidence the dynamics of such chambers.[139]
If a mixed House had been approved by both Houses of Parliament
on a free vote, and so had received all-party endorsement, it
would be difficult for elected members to carp at the presence
and influence of the non-elected members which Parliament itself
had agreed should be there.
13. Second, there are ways of minimising the
problem. Both the Royal Commission and the PAC[140]
recommended that in a mixed House everything should be done to
ensure that all members enjoy parity of esteem, whether elected
or appointed. Thus as the Royal Commission put it:
Once members have arrived in the chamber, by whatever
route, they should so far as possible serve the same terms, benefit
from the same allowances and facilities and be treated in all
respects identically.[141]
This very clear recommendation has been completely
ignored by many of the opponents of mixed House in Parliament.[142]
14. Finally, the proponents of this view miss
a simple, but crucially important point: if the elected members
constituted a large majority of the House, as the White
Paper envisage, then the elected could never be defeated by the
un-elected; thus the danger Bogdanor foresees would simply never
materialise. A 20% un-elected contingent simply could never defeat
an 80% elected one.
15. Moreover, it is unlikely that any given issue
would split the two groups of members squarely down the middle
as Bogdanor suggests. In nearly all cases, there would be bound
to be some elected members (particularly perhaps Liberal Democrat
and non-partisan party members generally) siding with their independent
colleagues. This would preclude the isolation and exposure of
the un-elected members.
16. However, a modified version of this objection,
that could still apply where the elected members were in a majority,
was advanced by Lord Butler, former Cabinet secretary, in debate:
Let us envisage that on a controversial issue the
government of the day and the opposition parties are in conflict,
but one side has a small majority which is overturned by the votes
of the minority of appointed Members. If we have accepted election
as a necessary condition for legitimacy, where is legitimacy then?[143]
17. It is clear that in such a case, there would
be no straightforward clash between the elected and the un-elected,
as Bogdanor envisages. But the only response to Butler's question,
"where would legitimacy be then?" is that legitimacy
should be seen as a condition for the House as a whole: if it
has a majority of elected members, it is House in which the democratic
will can always prevail and thus a legitimate institution. Moreover,
if the situation Butler envisages were to materialise, it seems
plausible to believe that the public would view with relief the
sight of the squabbling parties having the odd issue resolved
by the dispassionate intervention of independent experts. Moreover,
it is ironic that this objection is nearly always made by those
who favour a wholly appointed House. Such a House, when it disagrees
with the Commons, precisely pits the appointed, as a body, against
the elected Commons, and therefore raises in a far more stark
and extreme way the problem at issue.
18. It is possible therefore that a mixed House
could raise some legitimacy issues in this way, but this
does not provide, as Bogdanor and others suggest, a conclusive
argument against such a chamber. Rather it may represent the only
real drawback in what is otherwise the best solution to a notoriously
difficult problem; a drawback to be balanced against the numerous
advantages to be discussed below.
Why not a wholly elected second chamber?
19. In contrast to the position under the Blair
government, it is the 100% elected House that has now emerged
as the main rival to the hybrid option in the current proposals.
The arguments in favour of such a House are clear and straightforward:
that a democratic mandate should be the only way to political
power in a democracy and that the greater legitimacy and so potency
such a House would have would give it a much more prominent voice
in the policy-making process.
20. Many of the arguments against such
a House are equally familiar. In essence they stem from the basic
contention that, if proposals for a wholly appointed House tip
the balance too far in favour of distinctiveness at the expense
of legitimacy, a wholly elected House would do the opposite. Proposals
for such a House strike a bad balance between the three criteria
discussed above, because, while such a House would have very strong
legitimacy, its distinctiveness would be almost entirely lost.
A wholly elected House would face the loss of the distinctive
expertise that, as discussed above, renders it such an effective
scrutinizer of legislation and policy.
21. Coupled with this loss would be the certain
removal of the current House's relative independence from party,
with the resultant danger that the second chamber would merely
duplicate in character the Commons and thus add little to the
legislative and scrutinising functions carried out by that House.
While the second chamber, if elected by PR, would still have a
different party balance from the Commons, essentially, we would
have another chamber exclusively made up of professional politicians.
This would give us a narrowly-based, rather than a pluralistic
House and one that, though elected, was, paradoxically, not very
representative of the concerns of the people: as Shell has pointed,
out, in contrast to the strongly partisan character of British
MPs, "the overwhelming majority of [the electorate] have
at best no more than the weakest of party allegiance.[144]
Representation of different interests from those of the lower
chamber is one of the classic functions of a second chamber, as
is the injection of more independent viewpoints in otherwise "party-dominated
Parliaments."[145]
Moreover, experience has shown that it is extremely difficult
for independent candidates to gain election; even under a PR system,
it may be expected that the political parties would retain their
stranglehold on the second chamber. Independent members would
become a rarity, as in the Commons. At a stroke, this would remove
the distinctive contribution made by the cross-bench Peers at
present.
22. What may be added to these familiar arguments
are perspectives gleaned from the respective performances of the
Commons and the Lords in dealing with the large number of anti-terrorism
Bills introduced into Parliament under the last Government. The
response of both Houses to the 2001 Anti-Terrorism, Crime and
Security Bill, introduced into Parliament in response to the perceived
greater threat from international terrorism following the attacks
on America on 11 September 2001, was particularly striking. The
behaviour of the Commons in relation to this Bill, one of the
most draconian pieces of legislation brought before Parliament
in peace-time in this or the last century, was sobering, especially
for the enthusiasts for a wholly elected second chamber as the
guardian of our liberty. Whilst the Lords passed a series of important
amendments to the legislation, ameliorating at least some of its
worst aspects, the Commons passed a Bill some 124 pages long,
which partially abrogated habeas corpus, and made the UK the only
country in Europe to derogate from Article 5 of the ECHR, in just
16 hours; of the 135 clauses of the Bill, precisely 86 were debated
in the Commons.[146]
23. Despite powerful reports from the Joint Committee
on Human Rights,[147]
warning that the Bill as drafted, almost certainly violated the
ECHR, the Commons imposed not a single amendment against the Government,
and then, as and when instructed to by Government Whips, obediently
and repeatedly overturned Lords amendments intended to safeguard
human rights and keep the proposed new powers within reasonable,
internationally-endorsed limits. Although there were small back-bench
rebellions, in general, party discipline was rigidly maintained.
The Common's spineless performance in relation to this Bill caused
one respected commentator, Hugo Young, to remark: 'In a long record
of shaming fealty to whips, never have so many MPs showed such
utter negligence towards so impressive a list of fundamental principles.'[148]
24. In the light of this experience, it is suggested
that anyone with a concern for basic civil liberties should be
deeply concerned at the prospect of a second chamber that more
or less replicated the Commons dealing with such a Bill. While
a chamber elected by PR rather than first past the post would
be unlikely to contain an absolute government majority, the often
close rapprochement between Labour and Conservatives on anti-terrorist
and crime-fighting measures, due to the electoral imperative to
appear "tough on crime", would mean that the combined,
whipped Labour and Conservative members would probably be able
to drive through such legislation with little difficulty.[149]
For those of us, therefore, who care about civil liberties, and
who would like to see such legislation given particularly close
and penetrating scrutiny by Parliament, the retention of a strong
independent element in the Lords is vital.
25. Against this argument, it could be pointed
out that, as Russell's research has established, wholly-elected
second chambers overseas tend to take a more deliberative view
of legislative measures, be less partisan and show greater concern
for human rights and constitutional issues than their respective
first chambers; governments are also more likely to concede amendments
in second chambers, partly because, in the less confrontational
atmosphere that is characteristic of them, such concessions appear
less like political defeats. Reasons for this include a combination
of longer terms of office and a greater average age of the members,
and the fact that such chambers usually have no power to unmake
governments and generally lesser powers over legislation than
the lower House, resulting in the imposition of less strict party
discipline.[150]
These factors, then, tend to result in "mature and deliberative
parliamentary chambers with a less adversarial atmosphere."[151]
It could therefore be argued that the concern expressed in the
preceding paragraph, that a directly elected second chamber would
have had little more ameliorating impact on the Anti-Terrorism
Bill than the Commons, is overdone.
26. This argument, however, fails to take account
of the unique constitutional arrangements and political culture
of the UK, which, it is suggested, make the addition of independent
members to its reformed second chamber of peculiar, compelling
importance. Not only does the UK constitution offer no judicial
protection against unambiguous legislation that abrogates fundamental
human rights[152]—unusually
amongst Western democracies—but there is no need for special
majorities in Parliament or referenda in relation to such legislation,[153]
so that, legally speaking, the overall constitutional arrangements
of the UK, including its protection for fundamental rights, can
be altered as easily as the dog-licensing laws. In short, within
such a political and constitutional context, it is uniquely important
that the composition of the UK's second chamber must guarantee
the presence of members who will instil a particularly strong
culture of mature, objective, and long-termist scrutiny of the
wisdom and necessity of any such changes, in a chamber insulated
to an extent from the short term political considerations which
generally drive governments and political parties. A fully
elected second chamber would be unlikely to provide such members
in sufficient numbers to make a difference; it is suggested that
it would for this reason not be a chamber apt for the UK constitution.
126 I draw in particular on my article '"The greatest
quango of them all", "a rival chamber" or "a
hybrid nonsense"? Solving the second chamber paradox' (2004)
Public Law 352. Back
127
Ibid, at 353 Back
128
Fifth Report, H.C. 494-i (2001-2002). Back
129
Shell, D. 'The Future of the Second Chamber' (2004) 57(4) Parliamentary
Affairs 852, 855. Back
130
M. Russell, Reforming the Lords: Lessons from Overseas (Oxford:
OUP, 2000) esp. pp. 163-164 and 250-254. Back
131
Op cit, para. 8. Back
132
Constitutional Reform: Next steps for the House of Lords,
H.L. 17 H.C. 171 (2002-03).para 3. Back
133
Russell at 299. Back
134
Ibid, at 164. Back
135
Op cit, para. 8 Back
136
After Lord Strathclyde, then Conservative Leader in the Lords. Back
137
H.L. Deb. col. 830 (22 Jan 2003). Back
138
V. Bogdanor, 'Reform of the House of Lords: a Sceptical View'
(1999) 70(4) Political Quarterly 375. Back
139
"Second Chambers Overseas" (1999) 70(4) Political
Quarterly 411, 417. Back
140
Op cit, paras 98-99. Back
141
A House for the Future, Cm 4534, para 12.5. Back
142
See, e.g. H.L. Deb. col. 648 (21 Jan 2003), Lord Sheldon: elected
members "will still claim a greater legitimacy with secretaries,
research assistants and offices." "Imagine the ill-feeling
if you have a hybrid House and elected Members get salaries and
appointed Members do not." (ibid, col. 649 (Lady Saltoun).
See also the similar fears of Baroness Seccombe, ibid,
col. 653 and of Lord Gilbert, ibid, col. 818 (22 Jan 2003).
Back
143
ibid, col. 770. Back
144
D Shell, "The Future of the Second Chamber" (1999) 70(4)
Political Quarterly 390, 393. Back
145
See M. Russell, "What are Second Chambers for?" (2001)
54 Parlt. Aff,.442, 443. Back
146
See H.L. Deb. vol. 629 col. 1533, (13 Dec 2001), Baroness Williams. Back
147
Second Report, H.C. 37, H.L. 372 (2001-02); Fifth Report, H.C.
51, H.L. 420 (2001-02). Back
148
H Young, 'Once lost, these freedoms will be impossible to restore'
The Guardian, 11 December 2001. Back
149
See e.g. the analysis by F. Klug, K. Starmer and S. Weir: "Civil
Liberties and the Parliamentary Watchdog: the Passage of the Criminal
Justice and Public Order Act 1994" [1996] 49(4) Parlt.
Aff. 536,542. Back
150
Russell, op cit, p. 103-104. Back
151
Ibid, p. 103. Back
152
Under the Human Rights Act 1998 such legislation remains of full
effect, even if declared incompatible by the Courts(s 4(2)and
public authorities may act under it: s 6(2). Back
153
See the table in M. Russell and R. Cornes, 'The Royal Commission
on Reform of the House of Lords: A House for the Future?' (2001)
64 M.L.R. 82 at 86, which shows the special powers over constitutional
legislation of the second chambers of the legislatures of Australia,
Canada, France, Germany, Ireland, Spain, Italy, Japan, Switzerland
and the USA. Back
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